The mutual recognition of decisions in criminal matters between Member States is the cornerstone of the European judicial area. In practice, the Commission notes that the Member States are still reluctant to recognise criminal decisions taken in another Member State of the Union. This communication calls for a strengthening of mutual trust, this being an absolute necessity if the European judicial area is to be achieved.

ACT

Communication from the Commission to the Council and the European Parliament: Communication on the mutual recognition of judicial decisions in criminal matters and the strengthening of mutual trust between Member States [COM (2005) 195 final - Not published in the Official Journal]

SUMMARY

The Commission focuses on aspects of the mutual recognition programme that have not yet been implemented. It resets the priorities for the years ahead in the light of the Hague Programme and analyses progress to date.

The pre-trial stage

The gathering of evidence is an important pre-trial stage. The evidence permits identification of the person committing an offence or, on the contrary, may confirm an individual's innocence. In this communication, the Commission reviews several aspects of the pre-trial stage, namely:

mutual recognition of evidence: At European level, a proposal for a framework decision on the European evidence warrant (COM(2003) 688) should be adopted by the end of 2005 in accordance with the Hague Programme. However, it does not cover the entire range of necessary evidence. Moreover, the Commission would like to see mutual recognition of investigation measures such as questioning suspects, witnesses and experts, bank account surveillance or telephone-tapping orders. It considers that the ultimate objective is to adopt a single administrative instrument that will facilitate the gathering of evidence of all kinds in criminal cases throughout the Union. In the Commission's view, the effect of applying the mutual recognition principle to the gathering of evidence should be to leave the investigations to be run by the issuing State (the State requesting another Member State to gather evidence). The executing State (the one providing the evidence) cannot question the decision to seek this or that piece of evidence;

supervision measures: As regards mutual recognition of non-custodial pre-trial supervision measures in the investigation procedure, the Commission mentions the Green Paper that was published in August 2004 [COM(2004) 562 final]. It observes that excessive use of pre-trial detention is one of the causes of prison overcrowding and that the alternatives available in national law are often impossible to use where the person resides in another Member State.

Mutual recognition of final judgments

Recognition of a final judgment given in one Member State has a series of consequences in the other Member States. In this communication the Commission considers a number of aspects of fundamental importance for effective mutual recognition, namely:

mutual information on convictions: Mutual recognition here depends on information on convictions being able to circulate freely. In line with the Hague Programme, the Commission presented in January 2005 a White Paper (PDF) analysing the main difficulties in exchanging information on convictions;

the ne bis in idem principle means that no-one can be tried or punished again in criminal proceedings for an offence for which he has already been finally acquitted or convicted within the Union in accordance with the law. This principle is enshrined in Article 50 of the Charter of Fundamental Rights of the European Union, which extends application of this principle throughout the Union, and this represents considerable progress compared with Protocol 7 to the European Human Rights Convention (ECHR). In addition, the Court of Justice of the European Communities has examined the scope of this principle and delivered major judgments in this respect in connection with the Schengen Agreements (C-385/01 Gozütok and Brugge; C-469/03 Miraglia);

taking account of convictions in other Member States in the course of criminal proceedings: The Commission advocates that convictions in criminal proceedings in other Member States should be taken into account. To this end, it has presented a proposal for a framework decision establishing a general principle whereby Member States would be required to attach the same effects to convictions handed down in the other Member States as to national convictions. Previous convictions may influence the course of a trial: the judge may assess the risk of repeat offending, thereby also influencing the nature and quantum of the sentence;

enforcement of criminal penalties: It must be possible for a sentence handed down in a Member State to be enforced anywhere in the Union. In April 2004 the Commission launched a consultation exercise on the approximation, mutual recognition and enforcement of criminal sanctions in the European Union on the basis of a Green Paper (COM(2004) 334). In particular, Austria, Sweden and Finland have presented an initiative to permit enforcement in the Member State of nationality or residence, but not in the Member State that imposed the penalty. This instrument should also make it easier to apply certain provisions on the European arrest warrant. Nevertheless, the Commission would also like to address the question of the enforcement of non-custodial measures, suspended sentences and the conditions for them to be overridden by a penalty ordered in another Member State. It will present legislative proposals in 2007;

mutual recognition of disqualifications: Convicted offenders are often subject to disqualifications (e.g. from working with children, tendering for public contracts, driving or whatever). Such disqualifications vary widely in nature and because there are difficulties in exchanging information about them. The Commission takes the view that progress can be achieved once information on convictions can be exchanged via a computerised system. It recommends a sector-by-sector approach here, taking each type of sentence in turn.

Reinforcing mutual trust

The Commission stresses that reinforcing mutual trust is the key to making mutual recognition operate smoothly. This involves legislative action to ensure a high degree of protection for personal rights in the EU and a series of practical measures to give legal practitioners a stronger sense of belonging to a common judicial culture. The Commission envisages strengthening mutual trust between Member States both by legislative measures and by practical accompanying measures.

When it comes to strengthening mutual trust by way of legislative measures, the Commission would like to harmonise certain provisions of criminal law. In particular, it would like to see harmonisation of the law of criminal procedure at Community level so that mutually recognised judgments meet high standards in terms of securing personal rights, such as the presumption of innocence, decisions in absentia and minimum standards on the gathering of evidence. Consideration should also be given to the further approximation of substantive criminal law (definition of liability, offences and corresponding fines).

As regards strengthening mutual trust by practical flanking measures, the Commission would like to reinforce evaluation mechanisms so as to evaluate properly the practical needs of the justice system and, in particular, to identify potential barriers before new instruments are adopted. It would also like to see evaluation of the specific practical conditions for implementing EU instruments, and in particular best practices and the way in which the needs identified can be met. It is particularly important to reinforce mutual trust between judicial systems and, to this end, the Commission advocates promoting networking among practitioners of justice, such as the European Network of Councils for the Judiciary and the European Network of Supreme Courts. In addition, it attaches crucial importance to judicial training, which must, while respecting the powers of the Member States, fully reflect the European and international dimension of the judicial function, something that must be fully integrated into syllabuses.

The annex to the communication contains a Commission working paper setting out in tabular form the different objectives, the method of implementation and a schedule for the measures envisaged.